Friday, February 27, 2015

AU IP/Gender Panel II: Documenting Communities of Practice

Moderator – Meredith Jacob, American University Washington
College of Law

Jhessica Reia, Center for Technology and Society at Fundacao
Getulio Vargas (CTS-FGV) – DIY or Die! Gender and Creation in Marginal Music
Production

Straight edge movement in Brazil: associated with
vegetarianism, anarchism, as well as music, not consuming drugs/alcohol.Collective Verdurada runs a festival in São Paulo. Largest DIY
event in Latin America.Talks every day
of the festival about direct action, environmental issues, sometimes gender
issues.Ideology: anyone can be in the
audience and anyone can be on the stage (maybe).Internet is making things easier to spread
the news, arrange snows. Broad support for downloading music: to check if they
like it, if it’s unavailable to buy, or from major artists who are already
rich. But not OK to make and sell CDs.Supporting the scene is very important.Go to the shows, buy the merchandise even if you download.

Bands at the festival are mostly male, never all female.“Angry energy” at a hardcore show; mosh
pit.Few girls in the mosh pit.You hear men say that girls come for the
boys.The ideal of autonomy—anyone can come
here—is not exactly true.Lesbo-anarchofeminist
scene: many women started to leave this scene and go to their own, separate
track.Yet women are also present:
organizing, disseminating information, attending.Mix of very progressive guys and stereotypes.Also issues surrounding LGBTQ
participation/discriminatory attitudes. Ideology is that “girls don’t play
because they just don’t want to play.” Some men leave when women play, or when
there’s a talk on abortion.General
resistance to admitting a problem existed.Copyright or lack thereof isn’t the issue in marginal cultural production:
it’s not inviting women, silencing women.Alternative licensing/access is very important.

Continuing struggles: revenge porn incident in the scene;
anarchofeminists arguing that “we don’t need to be with these jerks.”

Betsy Rosenblatt, Whittier Law School (and Rebecca Tushnet)
– Transformative Works: Young Women’s Voices on Fandom and Fair Use

Turned 80
pages of information into our chapter for a book on girls & eCitizenship.Some data we turned up about fandom
participation.Think about what people
are creating when they are creating.Sometimes: think of it as stuff—fabric, film, stories. Or: they’re
creating communities: family, family analogue, group identity. Or: they’re
creating themselves.All of these things
are happening and more! In our community, this sense of community and sense of
self were crucial elements in what the creative process was doing.
Self-actualization and training ended up as big elements of the creative
process.

Our fandom: media fandom, focused on creating fanworks,
online communities.Grew with the
internet; overwhelmingly female—not the only kinds of fans, but it’s a massive
set of interlinked communities, with tens of millions of works.DeviantArt, Vimeo, fanfiction.net, Archive of
Our Own, Livejournal/Dreamwidth. Focused on making noncommercial works,
although there are occasional crossovers. The fact that the media has latched
on to that demonstrates how exceptional that is v. common fannish gift
economies.These are pretty
uncontroversially fair uses.They
transform meaning; they’re noncommercial; usually take small portions; don’t
compete in original market and tend to grow that market.10s of millions of works on the internet.

OTW established in 2007 to promote acceptance of
noncommercial fanworks as legitimate creative works and to preserve the history
of fan culture and protect/defend fanworks from commercial exploitation and
legal challenge.PTO/NTIA put out a
Green Paper asking for commentary on remix. OTW called for personal accounts of
how fanworks affected lives; received 107 responses and submitted our response
describing themes we found in them.

Limitations: we couldn’t confirm the gender of respondents,
but we depended on self-identification, which was what mattered to us.Also a self-selected group; we didn’t ask
about the drawbacks of creating fanworks and didn’t get answers about
that.This piece focuses on benefits for
young women and girls, though there are also many benefits for men/boys in
creating fanworks, and we received responses from many whose genders we couldn’t
identify reporting similar benefits.But
many of the responses were very specific to gender and sexuality.

Trends: (1) Women and girls stated that creating fanworks
provided unique opportunities to develop social and professional skills. (2) Broad
concepts of fair use/fair dealing that permit noncommercial derivative works
promote expression by often marginalized speakers and offers benefits that may
not relate directly to the stuff they’re producing.

Fandom helped them understand themselves. Fandom as rescuer—often
as saving lives: through fandom and fanworks, they found they were not alone,
found a voice, learned to gain confidence in themselves and their
opinions.Women reported that fandom
allowed them to talk back to a mass culture that didn’t adequately represent
them—claim agency around popular narratives; explore gender & sexuality by
changing those elements of popular characters; allowed them to explore race and
disability when the mass media gave them few examples of girls of color or
disabled girls. Although fanworks are often derided in mass culture, that
derision seems bound up with negative attitudes towards feminine pursuits and
young women’s attempts to make themselves. As women pointed out, fanworks gave
them the opportunity to start bad and get good. Young writer is learning to
find her voice—that’s the benefit! Reminds Rosenblatt of “fake geek girl”
narrative in other areas of American fandom.

Remix also taught important skills, including language
skills in translating fanworks; writing and editing skills through use of “beta
readers”; critical thinking skills in looking behind narrative to find their
own critical approaches; visual art, video editing, programming, other
technical fields as they learned to create the works they wanted to see and
share; many credited creation of fanworks with later career success.

Both transformativeness—the fact that these works were
transforming the meaning of source works—and noncommerciality were crucial to
how fan cultures manifested. The law favors such works. Hard to say
cause/effect, but having a law that favors these things tends to promote the
building of these self-actualization and skill-building communities. You don’t
have to cater to a commercial market to create, so fanwriters could be more
concerned with self-expression; knowing they had a built-in market let them
experiment with forms and styles and content. Reward was support and feedback,
which depended on culture of giving and learning, as well as empathy. This isn’t
a priority in a lot of commercial endeavors.

Self-empowerment: you can tell the story the media isn’t
telling.Remix generally tends to come
from underrepresented groups.

Implications for law: important not to require permission.
Important to allow fans and others to use sources as they wish to, not as copyright
owners would wish them to be able to. Uncertainty in law tends to silence those
who feel disempowered, so greater certainty would promote the selfhood and
community-building aspects of fanwork creation; seeking permission creates
boundaries and barriers to entry.If you
think you might have to seek permission, you might just not make the thing.

Jacobs: Posit this: straight edge community is defined
against all the things it isn’t: drinking, eating meat, etc. Thus you have to
check all the boxes to belong.High
conflict nature—easy to fall outside. Fandom is less aggressively oppositional
and more simply separate, which has provided more entry points to the
community.React?

Rosenblatt: the Q of is fandom a counterculture? may
oversimplify.Writ large, it is a
counterculture in that it challenges the idea that media is for consumption, a
one-way street.But that idea of talking
back to culture is now permeating more broadly.Media fans often think of themselves very much as part of a broader
expressive unit—everyone is creating, the writers of the show and us too.(Show writers don’t think that way, she
notes!)There are a lot of box-checking
internal norms in various fan communities, though.She identifies as a Sherlockian, which is a
different fan community from “Sherlock Holmes fans,” though crosspollination
between the communities has been very productive.They have different boxes to check to fit
socially and culturally. Internal norms can be quite oppositional to the law
and quite definitional; one widespread norm is that, while transformative
creation is presumed and appreciated, plagiarism is evil and attribution is
very important.

Reia: she had to prove she wasn’t a journalist to be allowed
to research the Straight Edge community.Subcultures don’t really have fixed boundaries: people have different
identities with overlaps and sometimes they create borders. They’re trying to
destroy the system—try to be far from regular people, and yet that often
presses them into a different kind of conformity/rule system.You can’t do drugs, but you can drink a lot
of Coke. You can’t drink alcohol, but you can eat at McDonald’s three times a
week. What it is to be straight edge is complicated.

Charles Colman: Rosenblatt and RT reminded him of Silbey’s
book: unabashedly qualitative work. What are the legal and nonlegal
challenges?Supernatural actually
responded to characters being cast as gay in the fan world—tolerated but
dismissed. Is that more damaging than legal action?Are the writers mostly men?Fans as community of women mentoring each
other—absence of mentoring/teaching relationships when people don’t align in
their identity groups.

Rosenblatt: there are a couple of different types of
challenges.Legal: no lawsuits (but
occasional objections).Nonlegal:
respect challenges.There is a lack of
respect but it may not be what you fear it is. There is a sense that it is tolerated
use and therefore women who make these works are marginalized; but there is
increasing recognition that fanworks are really important to the market for the
media they support.So they may not
respect the quality of creation in the first instance, but they respect the growth
that comes out of it.The idea that
people who start making these works will make works ultimately that are
establishment-quality.(RT: Of course
that need not be your goal!Fandom is big!)Writers’ rooms are usually majority male; the
mentoring systems exist and they are not always explicitly gendered—better than
law firms; but the hiring isn’t better than law firms because the execs are men
and often more skeptical of young female writers than of young male writers.

DMCA challenges: often fanworks are ignored; but when
machines do searches, fair uses get caught in the net. It’s more common for
women to say they don’t want to fight a takedown because of even a small risk; men
are relatively more likely to want to fight (and to want to commercialize their
fanworks in the first place). When we get queries from people who have
commercial projects, they more often come from men.Women are more likely to just want to write
noncommercial works.

Carys Craig: what happens in the transition from the
community to outside?“Pro” writers—how does
that affect relations in the community?What about the understanding of copyright norms and potential
replacement of social norms with legal norms?

Rosenblatt: the crossover isn’t just from TV fan to TV
writer; it’s often fan to professional person.People who learn video editing and go on to become video editors, not
necessarily for TV; technical writing/academics also benefit.Shifting cultural norms: it may happen with a
shift in status/perceived status, but not sure it always shifts.Many TV writers understand that what they are
doing is a form of fanwork to what came before, but they really want their
residuals and they want to be recognized as pros.

RT: I’d say culture beats law almost every time, just as
culture beats nature almost every time. People believe the law is one way
because their culture induces them to do so.

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I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.